Summary
stating federal constitution does not require attachment of affidavit
Summary of this case from State v. SouthOpinion
No. 81CA0131
Decided July 15, 1982. Rehearing denied July 29, 1982. Certiorari denied September 27, 1982.
Appeal from the District Court of El Paso County, Honorable Matt M. Railey, Judge.
J.D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Special Assistant Attorney General, Morgan Rumler, Assistant Attorney General, for plaintiff-appellee.
Darol C. Biddle, for defendant-appellant.
Division II.
Following a jury trial, defendant, Joseph Louis Papez, was convicted of possession of not more than one ounce of cannabis, a class 2 petty offense, in violation of § 12-22-412(12)(a), C.R.S. 1973 (1978 Repl. Vol. 5), and was fined $100 and costs. He appeals. We affirm.
During the course of his investigation of the burglary of a real estate office, detective John Mullins obtained a warrant for a search of defendant's residence. None of the stolen property was found. However, while searching for the items listed on the warrant, he saw and seized drugs and drug paraphernalia that were in plain view. Contending that the search warrant was defective and invalid because the description of the items to be seized was not sufficiently specific and because there was no probable cause for its issuance, defendant moved to suppress the evidence seized. Except for a few items not material to the charge, the motion was denied and the evidence was admitted. He makes the same contentions on appeal.
I.
Defendant contends that the affidavit of officer Mullins in support of the application for the search warrant did not establish probable cause to believe that the stolen property would be on the premises to be searched. We do not agree.
The affidavit contains statements, based on a report from the named victim (whose reliability defendant does not challenge), that there was a forced entry into the victim's office at 56 Park Avenue, Manitou Springs, Colorado, on March 29 or 30, 1980, and that certain specifically described property of a value in excess of $7,000 was taken from his office at that time. Mullins' affidavit further states that he found fresh footprints about the entrance and exit leading into the parking lots at 56 Park Avenue and 55 Grand Avenue. He observed the same type of footprints coming from 55 1/2 Grand Avenue. He contacted the defendant, who resided at that address, and observed that defendant was wearing a type of hiking boot which left prints similar to those around the burglary scene. The victim advised Mullins that he had seen defendant walking by the victim's office on several occasions, and that, when walking by, defendant could have seen the property that was later stolen if he had looked in the office windows. The officer requested defendant to allow him to enter the residence on a consent search; the request was denied.
The "constitutional standard of probable cause requires that the affidavit allege sufficient facts to warrant a person of reasonable caution in the belief that contraband or evidence of criminal activity is located on the premises to be searched. . . . In determining whether the constitutional standard has been satisfied, the affidavit must be interpreted `in a common sense and realistic fashion' and courts should not impose `technical requirements of elaborate specificity.'. . . " People v. Hearty, 644 P.2d 302 (Colo. 1982). Applying that standard, we agree with the trial court that the averments in the affidavit established probable cause to search.
II.
Defendant's other contention is that the trial court should have suppressed the drugs and drug paraphernalia seized from his residence for the reason that the search warrant described the property to be searched for, i.e., the property stolen from the office, in general terms only and was, therefore, constitutionally defective.
Defendant does not question the right to seize the items that were in plain view in the house being searched; he challenges the sufficiency of the warrant which authorized the officer to make any search of the premises.
We do not agree.
The search warrant at issue directed the law enforcement officers to enter defendant's apartment and to "search for electronic computers, calculators, lamps, vacuum cleaner, phone recorders," as these items were "stolen or embezzled" or "would be material evidence in a subsequent criminal prosecution." The warrant referred to the affidavit of Detective Mullins, the applicant for the warrant. Mullins' affidavit listed the following items stolen from the victim's office:
"1. TEXAS INSTRUMENT CALCULATOR (HAND HELD)
2. NOVAS CALCULATOR (HAND HELD)
3. AM-FM RADIO
4. SHOP VACUUM (ROUND CANISTER)
5. ENGLISH IVY PLANT AND POT
6. SMITH-CORONA ELECTRIC TYPEWRITER
7. TWO (2) BROWN WOODEN LAMPS
8. TEXAS INSTRUMENT DESK CALCULATOR
9. ADD 2000 REAL ESTATE RECORDER PHONE TYPE COMPUTER
10. RECORDER PLAY BACK FOR PHONE MESSAGES XL 6000a
11. MULITI LIST TERMINAL COMPUTER (REAL ESTATE)
12. ONE COM-KEY DESK PHONE"
Since the affidavit contains sufficiently specific information to satisfy any constitutional particularity requirement, evidence obtained in the resulting search need not be suppressed simply because the warrant itself is in more general terms. See People v. Del Alamo, 624 P.2d 1304 (Colo. 1981); People v. Maes, 176 Colo. 430, 491 P.2d 59 (1971); People v. Salazar, 39 Colo. App. 409, 568 P.2d 101 (1977). Also, here the affidavit was referred to in the warrant. Additionally, since the warrant was executed by Mullins, the one who had signed the affidavit and who knew what to look for, there was no occasion for concern that the officer would be misled by the description in the warrant.
Defendant argues that, even if the affidavit was sufficiently specific to satisfy the constitutional particularity requirements, absent a showing that the affidavit and warrant were attached together so as to form one document, the affidavit cannot cure deficiencies in the description of the goods listed in the warrant. We disagree.
There is nothing in the record to indicate whether Officer Mullins had a copy of the affidavit in his possession at the time he executed the warrant, or whether a copy was attached to the copy of the warrant served on defendant at that time. However, even if we assume, arguendo, that defendant was not given a copy of the affidavit, that does not render the search invalid.
The person from whom the property is taken is to be given a copy of the warrant and a receipt for the property seized. Crim. P. 41(d)(5)(V). But, there is nothing in the rules of criminal procedure, nothing in the statutes pertaining to searches and seizures, § 16-3-301, et seq., C.R.S. 1973 (1978 Repl. Vol. 8), and nothing in the federal or state constitutions which requires that such person must receive a copy of the affidavit or that a copy thereof must be attached to the copy of the warrant which is served at the time of the search.
Defendant has cited no Colorado case law establishing such a service or attachment requirement, and we have found none. To the contrary, People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970), holds that a warrant is not rendered defective if the contents of the affidavit are not included in, or a copy of the affidavit is not attached to, the warrant.
Under the circumstances of this case, it would be putting form over substance to apply the exclusionary rule merely because the officer executing the warrant may not have had a copy of the affidavit in his possession when he searched the home or because a copy of the affidavit may not have been furnished to, or attached to, the copy of the warrant given the person whose home was searched. This we decline to do.
Since we have decided this case on the basis that the search warrant was not defective, we do not address the issues raised in People v. Stoppel, 637 P.2d 384 (Colo.App. 1981), People v. Banks, 655 P.2d 1384(Colo.App. 1982), and United States v. Williams, 622 F.2d 830 (5th Cir. 1980), and in other recent cases, concerning applying the exclusionary rule when police officers in good faith execute a judicially approved search warrant later challenged for insufficiently meeting the requirements for a valid warrant.
Judgment affirmed.
CHIEF JUDGE ENOCH concurs.
JUDGE KELLY dissents.